Per- and polyfluoroalkyl substances (PFAS) are authorized for use in food contact applications by FDA, with applications falling into four categories: non-stick cookware, gaskets and similar equipment, as a processing aid, and as a grease-proofing agent in paper and paperboard food contact packaging.
FDA, in conjunction with manufacturers utilizing PFAS for food contact applications, has begun a phase-out of certain PFAS. FDA’s research and analysis on the data about potential health risks associated with certain PFAS suggested that certain PFAS currently in use had higher levels of toxicity as compared to certain other PFAS. Because of this new understanding, FDA has worked to eliminate those with higher toxicity levels from the marketplace.
In addition, multiple states have enacted bans on the use of PFAS in food packaging. Though many of the state bans have similar elements, each state law varies slightly from other bans. The first ban to become effective, New York’s ban, became effective on December 31, 2022. Bans in other states that are already enacted have effective dates through December 2024.
State laws vary in the scope of the ban. For example, many states limit the PFAS ban to only food contact packaging, while other states expand to any packaging components used for food, even if the component doesn’t directly contact the food. Similarly, some states only ban the use of PFAS in food packaging that is primarily derived from plant fibers, such as paper, cardboard, and fiberboard products.
Most state bans apply only to the intentional use of PFAS in the packaging, but California also bans unintentional PFAS present in food packaging at levels above 100 parts per million (ppm). State laws also, in some cases, exempt the use of PFAS as processing aid. Typically, these exemptions apply if the PFAS cannot be detected in the finished packaging component or when the PFAS does not serve a function or purpose in the finished packaging.
Currently, state bans have been enacted in California, Colorado, Connecticut, Hawaii, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont, and Washington.
Moving forward, we will be carefully monitoring FDA’s action, each existing ban, and any additional bans enacted by states.
Liz Presnell is a food industry consultant and lawyer, and has worked in the food industry for nearly a decade. She can be reached at presnell@foodindustrycounsel.com.